Child Support in North Carolina: Part II
In considering child support in North Carolina, the court looks predominately to the biological parents of a minor child to provide his or her support. Under North Carolina law, biological parents have a legal duty to provide for the reasonable needs of their child. There are only two instances where the court can look to a third party for the support of a minor child: 1) when an individual or organization has voluntarily agreed to stand in loco parentis for a child, and 2) when the biological parent of a child is an unemancipated minor.
In loco parentis is a Latin phrase that means “instead of a parent.” A common example of an individual standing in loco parentis is a stepparent. Although a stepparent does not have an absolute duty to provide for the support of a stepchild, he or she may assume a duty of support by voluntarily acting in loco parents. When an individual or organization acts in loco parentis, it means that the individual or organization has assumed the functions and responsibilities of a parent as if the individual or organization was the biological parent of the child. For instance Courts have found that a stepparent who has voluntarily accepted a stepchild in to his or her home and acted as if he or she were the parent of that child, taking actions such as listing the child as a dependent or providing the child with military identification, has stood in loco parentis as to that child. In order for North Carolina to recognize and enforce a support obligation by a non-biological parent of a child, the law requires that the individual or organization assume the support obligation in writing. The writing must be acknowledged by the individual assuming the obligation of support in the presence of a certifying officer as defined in the North Carolina General Statutes. Without a writing which conforms with the required formalities, a judge cannot order a third party to pay for the support of a minor child.
Despite this general rule that an individual may not be ordered to pay for the support of a non-biological minor child without first assuming the obligation for support in writing, there is one exception. This exception arises when the biological parents of a minor child requiring support are themselves unemancipated minors. In cases where one or both of the parents are unemancipated minors, North Carolina law permits the judge to look to the grandparents of the minor child of the unemancipated minors to share the support obligation.
The grandparents’ duty of support is to be shared with that of the minor parents and is independent of whether their own unemancipated child is the custodial or non-custodial parent of the minor grandchild requiring support. Under this scenario, the grandparents continue to share in the financial responsibility associated with the minor grandchild until both of the minor parents’ have reached 18 years of age or become emancipated. In situations where only one parent of a minor child requiring support is an unemancipated minor at the time of conception, North Carolina law provides that both sets of grandparents are liable for any child support arrearages owed by the adult parent until the unemancipated minor parent reaches the age of 18 or becomes emancipated. In determining each individual’s share of the child support obligation, the judge may take into account each party’s ability or inability to provide support and then order one or more of the above mentioned parties to share the child support obligation of the minor child.
In North Carolina, unless an individual or organization has assumed financial responsibility for a minor child in writing with the required formalities or one or both of the parents of a minor child for which support is sought is an unemancipated minor, a court cannot look to a third party to provide for the minor child. In situations where an individual or organization has voluntarily assumed a duty of support in writing, the individual or organization standing in loco parentis is only secondarily liable to the support of the minor child. To hold otherwise would place a stricter duty of support on an individual standing in loco parentis than the biological parents of a child. For example, where a former stepparent has assumed an obligation of support in writing which meets the required formalities, the Court must first look to the biological parents of the child to meet the needs for the child. If, and only if, the biological parents are unable to meet the needs of the child, may the Court require the previously mentioned stepparent to fulfill his or her obligation to support the minor child. Therefore, when a court orders support of a minor child, the court must first look to the biological parents of the child to provide for the reasonable needs of the child and can only look to a third party for support if the biological parents of the child requiring support cannot provide any support for the minor child or the minor child’s needs exceed what the natural parents can provide.